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R v Smith and Turner

R v Smith and Turner

Case [1994] SASC 4874 1 December 1994

Admissibility of Evidence

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COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Evidence - admissions - During the joint trial for murder of two alleged co-offenders, objection was taken to the admissibility of tape recorded conversations with one of the accused obtained in a clandestine fashion by a third person - held that although the recordings did not constitute a breach of the Listening Devices Act 1972, they should be rejected in the exercise of the Court's discretion as unfair, no caution having been given and the circumstances being such that a direct approach by police who wished to interrogate the co-offender concerned would have necessitated the giving of a caution. Listening Devices Act 1972 553, 4 and 7. R v Webb and Hay (1992) 59 SASR 563; Webb and Anor v The Queen (1994) 68 ALJR 582; Pfennig (No l) (1992) 57 SASR 507; Musico (1991) 55 SASR 274 and R v Dolan (1992) 58 SASR 501, considered.

Evidence - admissibility of statements made during the course of joint criminal enterprise - Evidence of conversations by one of two co-accused with a third party in the absence of the other held to be admissible as acts or words done or said in furtherance of a common purpose which existed between them. Tripodi (1961) 104 CLR 1; Ahern (1988) 165 CLR 87 and Corak and Anor
(1982) 30 SASR 404, considered.

Criminal law and procedure - separate trials - Discussion of the principles applicable to applications for separate trials of alleged co-offenders, and separately as to an application by a defendant charged with assisting one of the alleged co-offenders to escape apprehension. Criminal Law Consolidation Act 1935s241(1) (b). R v Hogan and Ors (1990) 159 LSJS 297; Webb and Anor v R
(1994) 68 ALJR 582; Assim (1966) 2 QB 249; Dawson (1961) VR 773 and Williams
(1932) 32 SR(NSW) 504, considered.

HRNG ADELAIDE, 22 August, 2, 30 September, 28, 31 October, 14 November 1994 #DATE 1:12:1994

Counsel for Crown: Mr D Whittle with him
Mr I White

Solicitors for Crown: DPP (SA)

Counsel for accused Smith: Mr W Braithwaite with him
Mr G Black

Solicitors for accused Smith: Elston And Gilchrist

Counsel for accused Turner: Ms A Vanstone QC with her
Mr E Mcgee

Solicitors for accused Turner: Mcgee and Associates

Counsel for accused Altintas: Mr J A Richards

Solicitors for accused Altintas: Belperio Clark

ORDER
Applications dismissed.

JUDGE1 PERRY J These reasons are published during the course of the trial to explain rulings which I made before the trial commenced as to applications by two of the accused for a separate trial and as to the admissibility of certain items of evidence.

2. The accused Mark Raymond Smith and Colin Frederick Turner are jointly charged with the murder of Cosimo John Castelluzzo on about 31 December 1992 at Edithburgh.

3. In a second count on the same information the accused Laura Altintas is charged with assisting the accused Smith to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Smith and Turner

Details

AGLC: R v Smith and Turner [1994] SASC 4874
Case: [1994] SASC 4874
Decision Date: 1 December 1994

CaseChat Overview and Summary

The case of R v Smith and Turner involved two accused, Mark Raymond Smith and Colin Frederick Turner, who were jointly charged with the murder of Cosimo John Castelluzzo. A third accused, Laura Altintas, was charged with assisting Smith to escape apprehension. The court addressed several legal issues, including the admissibility of tape-recorded conversations between Turner and another individual, Roberts, and the propriety of separate trials for the accused. The court ruled that the tape recordings were inadmissible against Turner due to the lack of a caution and the unfair circumstances of their acquisition. However, statements made by Turner in the absence of Smith were deemed admissible as they furthered a common purpose between the two. The court also dismissed applications for separate trials, finding that joint trials were appropriate given the interrelated nature of the charges and evidence.

Orders